Erosion of Affirmative Defenses

Once the decision was made that the role of the system is to compensate, there was little reason to allow the deep pocket defendant to avoid liability based on any notion of the plaintiff’s own negligence, intervening cause, compliance with regulatory standards, or other defense, including lack of causation. Thus, we find marching arm and arm with the expansion of liability theories, the erosion of the meaning of causation, and the destruction of contractual limitations to liability, an erosion of the affirmative defenses once available to manufacturers. This subsection examines a few of the more significant changes.